AD HOC – 3
IN THE MATTER OF AN ARBITRATION
CANADIAN NATIONAL RAILWAY COMPANY (Communications Department)
COMMERCIAL TELEGRAPHERS’ UNION
(Canadian National system division NO. 43) AGREEMENT NO.: 8.1
IN THE MATTER OF AN AGREEMENT BETWEEN THE CANADIAN NATIONAL TELEGRAPHS AND THE COMMERCIAL TELEGRAPHERS’ UNION, CANADIAN NATIONAL SYSTEM N0. 43, AND CERTAIN GRIEVANCES THEREUNDER
ARBITRATION BOARD: Judge Eric Cross – Chairman
James N. McQueen – Union Nominee
M. O’Brien – Company Nominee
Appearing for the Company:
F. G. Hamilton
R. S. Finegan
W. H. Barton
Appearing for the union:
A hearing in this matter was held in City of Toronto on Friday, May 6th, 1960.
AWARD OF THE CHAIRMAN
Pursuant to the terms of an Agreement between the above-mentioned parties, the undersigned was appointed Chairman of a Board of Arbitration along with Mr. James N. McQueen, appointed by the Union and Mr. M. O’Brien, appointed by the Company. Formal hearing was held at the City of Toronto on Friday, May 6th, 1960, at which the Company was represented by Mr. F.G. Hamilton along with Messrs. R.S. Finegan and W.H. Barton, and the Union was represented by Mr. Peter Podger, and Mr. Robert Tomlinson.
After hearing the evidence submitted by the parties and arguments put forward on their behalf, I now submit my Award as Chairman.
GRIEVANCE RE: HAROLD R. DAVIES
The grievance arises out of the following circumstances. On March 4th, 1959 the Company posted a job for the vacant position of Equipment Supervisor at Vancouver B.C. Three employees, H.R. Davies, C.W. Irvine and C.H. Hammlett made application for the position, which the Company awarded to Irvine, who was junior in seniority to Harold Davies, who claims that the position should have been awarded to him. The grievor contended that he was qualified to do the job which was posted and that it should have been awarded to him by reason of his seniority.
At the time the grievance was filed, the Agreement between the parties did not provide for arbitration. The grievance was processed to a Board of Adjustment which is provided for in the Agreement and confirmed this procedure by a letter dated August 19th, 1959, signed by its general secretary, Robert A. Tomlinson. Subsequently, by letter dated December 15th, 1959, the Union cancelled its participation before the Board of Adjustment. On November 17th the Union applied to the Canada Labour Relations Board for an order establishing provision for the settlement of differences by arbitration concerning the meaning or violation of the Collective Agreement. The Labour Relations Board conducted a hearing on December 9th and by order dated January 11th, 1960, directed that a clause providing for arbitration of grievances be inserted in the Collective Agreement.
This order provides for the insertion in the Agreement of the usual statutory provisions for the setting up of an Arbitration Board and among other things, provides that any grievance may be submitted to arbitration upon the written request of either party made within ninety days of the completion of the proceedings under the last step of the grievance procedure.
The last step of the grievance procedure would appear to be September 11th when the Union withdrew its participation from the Board of Adjustment. Ninety days there from would take us to December 10th. There were apparently some nine outstanding disputes which the Union desired to come before the Board of Arbitration and these are set forth in a letter of Robert A. Tomlinson, the General Chairman of the Union, Dated February 6th, 1960 to Mr. J.R. White, General Manager of Canadian National Telegraphs of Toronto. On February 17th, 1960, Mr. White replied to this letter and after dealing with the set-up of the board and providing for the nominee of the Company upon it, the letter then goes on to say:
Insofar as the number of cases which should be submitted to this Board at its initial sitting is concerned, we cannot agree with your request that all outstanding cases be heard before this one Board. In your letter you itemize nine cases, some of which are still under correspondence and which under the circumstances we cannot agree are ready for arbitration in accordance with the Arbitration Clause.
We are, however, agreeable in this initial instance to submit the following cases to this particular Board, i.e. the Davies’ case, the interpretation of Article 8, Clause 1(c), and article 18, Clause 6 insofar as time limits are concerned in the submission of applications, and the question of negotiation of a rate of pay for Supervisory Aides in Reperforator Switching Offices. We are writing you further in connection with all the cases mentioned in your letter.
A second letter from Mr. White, dated February 18th deals further with the Davies grievance and in this letter the general manager for the Company asks the Union to agree on a definition of the issue in dispute, and reference is also made to the getting up of the Board by the selection of a Chairman by the nominees of the parties. It is to be inferred from these letters that there was a waiver on the part of the Company for the time limit provided by the grievance procedure set up by the Canada Labour Relations Board.
The purpose of this order must have been well known to the Company and it must be inferred that the Company wished to obtain settlement of the outstanding disputes by arbitration. In any event, at no time does the correspondence reveal that there was an objection by the Company to the Board’s Jurisdiction on the ground of a lapse of time limit but on the contrary, the correspondence seems to indicate that the Company had waived such rights and was consenting to all outstanding disputes being settled by the arbitration procedure provided for in the order of the Canada Labour Relations Board.
For these reasons, I come to the conclusion that the preliminary objection raised by counsel for the Company cannot be sustained and that the grievance is arbitrable.
Article 8 of the Collective Agreement provides for the bulletining and filling of positions, and Clause l(c) provides that where jobs are posted, such positions will be filled within thirty days of the bulletin by the appointment of the senior qualified applicant.
It was the contention of the Company that the grievor was not fully qualified and that he had not the experience with the equipment that was possessed by Irvine, who received the job. For about ten years prior to the grievance, Davies had worked as an equipment maintainer, formerly known as an automatic mechanic. Since July 4th, 1949, Davies had also performed the duties of an automatic supervisor in the traffic group during the peak loads or the year, which occur in Summer months. There had been, however, a very considerable increase in the business of the Company in its Vancouver office, in its outside operations described as the City or equipment group, which included the supplying and maintenance of complex teletype machines in various businesses in the City, such as brokerage offices, air line offices and other commercial enterprises.
It was admitted by the grievor that his experience with this outside equipment was limited, and from 1943 to the beginning of 1958, except for two or three occasions, he had not performed maintenance services on customer equipment.
It was necessary, according to the Company’s witness, Mr. Arthur Harrow, that an equipment supervisor have a wide and special knowledge of all equipment, because as such a supervisor he would be expected to direct and assign other maintenance men to service various customer complaints. There was thus involved in the qualifications an element of supervisory experience and judgement, and it is most difficult for a Board to say on the evidence presented by the Union that the Company’s judgement has not been properly exercised.
Indeed, to the contrary, in this case I was most impressed with the evidence tendered on behalf of the Company by chief witness Mr. Arthur F. Harrow, Assistant Plant Supervisor, and Peter Noga, the Equipment Inspector for the Pacific Division. Both of these witnesses impressed me as extremely competent in their field and in the case of this opening, most anxious to come to a fair and reasonable decision. They had performance records of all the applicants who applied for the job and one dated August 13th, 1958, was submitted in which it was shown that Irvine was capable in all respects, where as Davies, the report stated, "could still stand more coaching, willing workers needs further work on 28S".
In Noga’s opinion Davies did not have the variety of experience that was required for the new job, in as much as his experience was largely confined to the traffic group. It is an essential part of the equipment maintenance in the outside services that the work be done as quickly as possible and that the supervisor have an expert knowledge of all the equipment which is serviced by his department. It was his opinion that on some of this equipment, at least two years’ experience was required before an operator would be able to spot trouble quickly and efficiently and furthermore, a combination of administrative and technical proficiency was also required so that the supervisor; would be able to guide those under him when in training or when in trouble. Noga further testified that the decision was made after a careful perusal of the records and that Mr. Davies had been turned down because of his lack of experience with certain types or equipment, upon some of which he had no training.
In the course of an able argument presented by Mr. Podger, he submits that the grievor being qualified within the meaning of the Agreement, has the right to the job and that the Board should not be influenced one way or the other by the ability of other competing employees. With respect, this submission must fail for two reasons. In the first place, I have no doubt that Davies is a competent mechanic in his own field and that with a few months of training, he probably could successfully have performed the job he claimed. Under Article 7, Clause 2 an employee appointed by bulletin shall be given a reasonable time in which to qualify, but this does not entitle him to a period of training.
Furthermore, what the qualifications are for a particular job must largely be determined by the Company and by previous practice. It is true that Irvine, who got the job, had superior qualifications to the grievor, but I still remain of the opinion that in view of the Company’s evidence, the grievor was not qualified to do the work without training at the time the job was filled.
In conclusion, I am of the opinion that the grievor’s qualifications received fair and careful consideration, and in the absence of discrimination, it is well settled that Boards of Arbitration will decline to substitute their judgement for that of competent management fairly exercised without discrimination. See Massey-Harris Limited, 1 L.A.C. 131; in re Falconbridge Nickel Mines Limited, 4 L.A.C. 1562; Polymer Corporation, 5 L.A.C. 1698.
For these reasons, the grievance must be dismissed.
DATED at Woodstock, Ontario, this 9th day of June, 1960.
(signed) Eric W. Cross (Signed) M. O’Brien
Chairman Company Nominee